Ballard v. Greenblatt Winslow, P.C

Full title: RONALD BALLARD, Appellant, v. GREENBLATT WINSLOW, P.C., Respondent

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 19, 2004

12 A.D.3d 1159 (N.Y. App. Div. 2004)

784 N.Y.S.2d 414

Opinion

CA 03-01152.

November 19, 2004.

Appeal from an order of the Supreme Court, Oneida County (Robert F. Julian, J.), entered April 3, 2003 in an action to recover damages for legal malpractice. The order granted defendant's motion for summary judgment dismissing the complaint.

Before: Green, J.P., Gorski, Martoche, Lawton and Hayes, JJ.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint on the ground that the action was never properly commenced. "It is well established that under the commencement by filing system, `service of process without first paying the filing fee and filing the initiatory papers is a nullity, the action or proceeding never having been properly commenced'" ( Sangiacomo v. County of Albany, 302 AD2d 769, 770, quoting Matter of Gershel v. Porr, 89 NY2d 327, 330).